The New York Civil Liberties Union just won a ruling against the MTA, finding the Authority's closed-hearing process for transit offenses unconstitutional and requiring them by injunction to open up to NYCLU, reporters, and anyone else who wants to look in.

MTA had for over 20 years granted the cops the choice of either summonsing alleged fare-beaters, extra-seat-takers, vandals, et alia to criminal court, or sending them to MTA's own "transit adjudication bureau" (TAB) hearings at 29 Gallatin Place, Brooklyn. Till recently TAB standards for public access were unwritten, but a newish transit authority document affirms that the custom has been for hearings to be closed unless a defendant consents to let in spectators -- in contrast to criminal trials, which public and press may attend -- and that this was now its policy.

NYCLU asked for and got an injunction to reverse this policy, and let people attend the hearings on First Amendment grounds. "Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context," says the ruling, "the Second Circuit has held that the right applies to civil as well as criminal proceedings... the Court holds that TAB Hearings are not afforded a per se immunity from First Amendment scrutiny."

While the Court admitted that "Administrative hearings in general, and TAB Hearings in particular, clearly lack such a historical pedigree" of openness as criminal proceedings, it found that the practice of allowing access to TAB hearings absent defendant objections, and the fact that transit offenses were exclusively taken to criminal courts pre-TAB, suggested "the experience of TAB Hearings is one of presumptive public access." Thus:

In light of these undisputed facts, the Court finds that TAB Hearings "walk, talk,
and squawk" like a trial, see Fed. Maritime
Comm'n v. S. Carolina State Ports Auth., 535
U.S. 743, 757 (2002), and as such, the same "logic" that would favor the right of access in the context of a formally styled criminal or civil proceeding applies in equal force in the context of a TAB Hearing, however labeled.